Archive for the ‘Law Review Articles’ Category

The Seton Hall Circuit Review at Seton Hall University School of Law graciously published my article, entitled The Defendant’s Right to Jury Trial in Jones Act Claims: Washington State’s Endicott Opinion Invites Much Needed Supreme Court Review near the end of December.

Plaintiffs in Jones Act claims have the ability to elect to have the claims heard in federal court or in state court. When a federal court hears the claim, the plaintiffs may elect to have it heard in admiralty (with no jury trial) or under another form of jurisdiction where either party can elect to have a jury determine the facts of the case. This is because the Seventh Amendment demands that the right to trial by jury be preserved except in a few special circumstances. The Supreme Court long ago ruled that admiralty trials were one of those exceptions.

At issue is that the plaintiff can elect to have the claim heard in admiralty or not in federal court, and because plaintiffs can amend their complaints (often as a matter of right), a plaintiff may first elect a form of trial that requires a jury and then amend the complaint to switch it back to admiralty. When this happens, some courts say the switching back is okay because even though the jury trial right should have attached in the first form of jurisdiction, because the plaintiff had the power to elect in the first place, there’s no harm done. Other courts say that so long as you keep the claim in admiralty, there is no jury trial right, but once you elect to have the case heard in another jurisdictional form, the jury trial right attaches irrevocably.

Here is my constitutional analysis of the Wyoming Firearms Freedom Act, published this month, March 2011, in the Wyoming Law Review.* Below is an excerpt (p. 238):

Although the Wyoming Firearms Freedom Act conflicts with existing federal law, the Act is a constitutionally valid exercise of state power. The Act is a manifestation of the doctrines of interposition and nullification espoused by James Madison and Thomas Jefferson in the early history of the United States. The Act is also a clear exercise of state sovereignty that comports with the historical development of the Tenth Amendment.